The VA legislature is one local battleground where open government and civil …

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This past Friday, the Electronic Privacy Information Center (EPIC) filed a Freedom of Information Act suit against the Virginia Department of State Police in an effort to uncover whether the federal government has been interfering in the state's open government legislation. EPIC suspects that the feds are trying to use the state police to pressure the Virginia legislature into passing a bill that will put limits on the state's open government laws and will encourage citizens to inform on one another by protecting anonymous tipsters from defamation and invasion of privacy lawsuits.

Why do the feds care about HB1007, the Virginia bill that open government advocates have decried as a major affront to privacy, civil liberties, and government accountability? In a word, it comes down to "fusion."

Fusion centers unite feds and states on terror... and drugs, and weather, and crime, etc.

One of the most far-reaching yet least-scrutinized recommendations to come out of of the 9/11 Commission Report's section on intelligence reform was the start of a number of efforts aimed at breaking down the walls between local, state, and federal law enforcement and disaster response. The thinking went that in terms of both prevention and response, effectively fighting terror would require a much higher level of centralized coordination among federal and state law enforcement and emergency services than had ever been previously contemplated.

The ultimate expression of this new federal/state integration was a nationwide network of "fusion centers"—low-profile, highly secure sites where federal and state officials with top secret clearance meet in order to collect, analyze, and redistribute information on "all hazards, all threats." The list of hazards and threats covered by these centers initially started with terrorism but soon expanded to include crime, gangs, weather-related natural disasters, and anti-war protesters. (Okay, just kidding about that last one... sort of. As opponents of domestic surveillance often point out, all domestic spying operations eventually turn their sights on political dissidents, if only to justify their funding in the absence of other threats.)

The ACLU hosts an interactive map of the 40+ fusion centers in the US; check out the location nearest your home, and then you'll know who's picking up the phone when you dial in an anonymous tip to a statewide counter-terrorism hotline.

Feds: "Yes, Virginia, you'll regret not passing this"

To return to the bill that's currently moving through the Virginia state legislature, opponents of HB1007 suspect that the federal government is pushing the state to adopt the measure, which will render all of the Virginia Fusion Center's databases and records exempt from FOIA requests. The bill also proposes to make Fusion Center employees exempt from subpoena in civil actions related to "criminal intelligence information," and it would grant to call-in tipsters immunity to defamation and invasion of privacy claims.

The feds are telling the Virginia state police that, if the bill's broad exemptions and immunities don't pass, then they'll be hindered in their ability to "fuse" their sensitive information with that of the state law enforcement and emergency response. The loss of the federally funded center would be a blow to local law enforcement, which gets free access via the center to a vast network of information and human resources.

On February 12, EPIC filed a FOIA request for any records of meetings and communications between the Virginia State Police and various federal agencies, including the Department of Justice and the Department of Homeland Security, concerning the Virginia Fusion Center. EPIC intended to use the results of this FOIA both to determine if the federal government were essentially lobbying for the passage HB1007 and to lobby against the bill.

The state police failed to produce any of the requested documentation, so EPIC filed suit on March 21.

Ultimately, it makes sense that as the executive branch seeks to integrate its growing domestic surveillance and homeland security apparatus more tightly with state and local governments, it will begin to run into problems from state legislative branches. While the US congress may have only recently discovered some semblance of a backbone in the current FISA debates, the states have shown an admirable willingness to dig their heels in over civil liberties issues. The best example of state-level resistance to federal civil liberties encroachments is the push-back on Real ID, which is admittedly motivated as much by the national ID card program's implementation costs as it is by concerns about its impact on democracy. But regardless of what's driving it, this resurgent federalism in the face of our growing national security infrastructure is shaping up to be the last line of defense if the US congress fails in its oversight functions.